Excerpt: - .....vacate the office of samudayi. 1st defendant therefore pleaded inter alia, 'the statement in the plaint that plaintiffs wanted this defendant to vacate the samudayeeship on 1st april 1916 is false. they have not so requested nor sent any registered letter. therefore defendant is still samudayee.' unfortunately the significance of this plea was not appreciated at the trial. it was not noticed that an injunction could not be asked for against a person, whose employment, whatever its exact nature, so long as it continued entitled him to the exercise of the rights proposed to be restrained. kunjunni naif v. subrahmania pattar i.l.r. (1907) mad. 162 was no doubt a suit for what was described as the removal of an agent. but the facts, as reference to the printed papers shows, were peculiar,.....

Judgment:

1. The plaintiffs, Uralans, sued 1st defendant alleging that they had admitted him to the management of their devasvom as Samudayi and given him a samudayam deed. The prayer was for an injunction prohibiting him from interfering with the Devaswom in future, for an account, and for possession of various properties belonging to the Devaswom and for the setting aside, meaning presumably a declaration, in respect of the Samudayam deed.

2. In the plaint there was no reference to any dismissal of 1st defendant, except a statement that on 1-4-1916 plaintiffs required him to vacate the office of Samudayi. 1st defendant therefore pleaded inter alia, 'the statement in the plaint that plaintiffs wanted this defendant to vacate the Samudayeeship on 1st April 1916 is false. They have not so requested nor sent any registered letter. Therefore defendant is still Samudayee.' Unfortunately the significance of this plea was not appreciated at the trial. It was not noticed that an injunction could not be asked for against a person, whose employment, whatever its exact nature, so long as it continued entitled him to the exercise of the rights proposed to be restrained. Kunjunni Naif v. Subrahmania Pattar I.L.R. (1907) Mad. 162 was no doubt a suit for what was described as the removal of an agent. But the facts, as reference to the printed papers shows, were peculiar, and it would have been useless for the defendant to lay stress on this aspect of them, because the plaintiff had in fact once dismissed him, that dismissal having been the basis of previous proceedings. In the present case there seems to be no reason for departure from the principle recognised in Srinivasa Swami v. Ramanuja Chariar I.L.R. (1898) M. 117 : 8 M.L.J. 190 and Sundara Aiyarv. Venkateswar Aiyar (1910) M.W.N. 397 that the plaintiffs cannot throw on the court the duty which lay upon them and ask it to grant them relief, which can only be granted after that duty has been done, on the assumption that the court will do it. The present suit, as the cause of action was set out in the plaint, was in the circumstances incompetent since a condition essential to the grant of relief by way of injunction was not alleged to have been fulfilled. If the proper course had been taken and an issue as to whether 1st defendant had been dismissed had been framed, a finding that he had not been, would have been fatal to plaintiffs and might have resulted in their withdrawing, with or without leave to sue again, after taking action to dismiss 1st defendant. And this point is not merely formal. For if a dismissal had been alleged or proved, 1st defendant might, as he has done here, have gone on to contend that it was of no effect, because the forms of natural justice were not observed in the holding of any enquiry preceding it.

3. Unfortunately all this was overlooked until the hearing in this court and even here although the absence of any enquiry preliminary to the dismissal was alleged in a supplementary ground of appeal, nothing was said as to the absence of any dismissal until the argument. As we have said however, we think the point fundamental, and we therefore do not feel at liberty even at this stage to disregard it. We therefore set aside the decisions of the Lower Courts and remand the suit to that of the District Munsif for restoration to file and re-hearing in the light of the foregoing, after both parties have been given reasonable opportunities to amend their pleadings on the points above referred to.

4. In view of the course of the proceedings, 1st defendant must pay the costs incurred by 1st plaintiff to date, excluding stamp value. Stamp value of appeal to this Court will be refunded on application.